FINANCIAL REMEDIES: FINAL HEARING: NO DECREE NISI: PANIC OR NOT?

11th Jun 2021

18 St John Street Barrister, Family Finance Specialist Stephen Murray discusses ‘Financial Remedies: Final Hearing: No Decree NISI’.

This author has had recent experience of a financial remedies case which was listed for a final hearing, in which there were experience on both sides, who were collectively seeking an adjournment of the hearing because there was no decree nisi.

    2. It was for this this author to point out that there was no need – the case could go ahead regardless. Indeed, the absence of a decree nisi did nothing to prevent Bennett J from hearing and determining the financial aspects of Sir Paul McCartney’s divorce from Heather Mills after a 6 day hearing in 2008.

 

    2. The source of the anxiety stems from section 23 Matrimonial Causes Act 1973 which provides that orders for financial relief may only be ‘made’ (‘the court may make’) on the ‘granting of a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute)’ (see the opening words of section 23 of the Matrimonial Causes Act 1973) (emphasis added).

 

    4. Section 23 must be read in the context of r 29.15 of the FPR 2010 which reads as follows:
    6. ‘A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.’
    10. In Munks v Munks [1985] FLR 576 the Court of Appeal concluded that an order made prior to the grant of decree nisi could not be corrected by amendment under the slip rule. In Board (Board Intervening) v Checkland [1987] 2 FLR 257, the Court of Appeal considered (and rejected) the argument that the defect could be remedied under the inherent jurisdiction.

 

    4. Next came Pounds v Pounds [1994] 1 FLR 775 where the court considered RSC Ord 42, r 3 (which was drafted in similar terms to the current relevant provisions of r 29.15 above) in relation to a consent order. The decision of Singer J (that the consent order was a nullity) was overturned in the Court of Appeal, which held that the district judge had the power to approve a financial consent order in advance of decree nisi on the basis that it was not to take effect  until a later date.

 

    4. In JP v NP (Financial Remedies: Costs) [2015]1 FLR 659 Eleanor King J (as she then was) considered this issue further. In that case it appears that at the time of the contested hearing and ‘determination’, the deputy district judge and counsel appearing were fully aware that decree nisi had not been granted. Indeed the Deputy District Judge specifically provided in that case in his order for the wife to obtain decree nisi, and further ordered the matter to be listed for mention upon pronouncement of the decree, and in Eleanor King J’s words ‘undoubtedly had in mind the provision of s 23 of the MCA 1973′. Eleanor King J, in allowing the appeal against the setting aside of the Deputy District Judge’s order, made a number of key points:

 

    4. The district judge had power under r 29.15 of the FPR 2010 to direct that a judgment shall take effect from such later date as the court may specify, para [35].

 

    3. Rule 29.15 applies equally to consent orders and to orders generated at the conclusion of a contested hearing, para [34(c)].

 

    4. However in that regard:

 

    3. It is necessary to look at whether the judgment delivered at the end of a contested hearing is a ‘final determination taking effect from the moment of judgment’ or ‘an indication of outcome with the consequential order to be drawn and made at a later date, (here upon the making of decree nisi)’, para [49].

 

    4. If the order is to be made at a later date (ie after decree nisi), there is no necessity or requirement for any fresh appraisal, para [52]; there are ‘rare cases where circumstances change fundamentally between judgment, (or approval of the consent order), and decree nisi but the court has in its arsenal the ability to deal with such situations’, para [53].

 

    4. ‘If the court purports to make an order or provides for a judgment to take effect prior to decree nisi, the resulting order will be a nullity and cannot be saved by r.29.15, para [52].

 

    3. Eleanor King J concluded that: ‘… it is apparent from the wording used by [the deputy district judge] that he was giving an indication of outcome by way of a judgment with the order to be made at a later date pursuant to r 29.15 of the FPR 2010 the date being the granting of decree nisi. In accordance with that indication, an order was made after and not before decree nisi.’ In other words, the order was validly made.

 

    4. The converse position was to be found in K v K (Financial Remedy: Final Order Prior to Decree Nisi) [2017] 1 FLR 541. In this case, at the time of the final hearing of the financial remedy application the District Judge, Counsel and solicitors for the wife were under the misapprehension that decree nisi had been granted. The husband, who acted in person, did not know the significance of obtaining the decree nisi prior to the final hearing. The judgment of the District Judge was expressed as a final determination taking effect from the moment of judgment:; it did not read as ‘an indication of outcome with the consequential order to be drawn and made at a later date’.

 

    3. Furthermore:

 

    3. (a)     The order was drawn up shortly after the hearing and sealed.

 

    2. (b)     There were provisions in the order (albeit expressed as recitals) which were to be acted upon within a matter of days, failing which sanctions would follow.

 

    2. (c)     The provisions which were to be acted upon within a matter of days were so acted upon by both parties.

 

    2. (d)     The wife plainly contemplated that the order was to have immediate effect given the preparatory steps which she took, immediately following the judgment in support of the enforcement application.

 

    2. Cobb J concluded that

 

    4. “[24] I am driven in these circumstances, to the conclusion that District Judge Heppell had purported to make an order which would take immediate effect, prior to decree nisi, and that his order will therefore be a nullity; I cannot accede to the submission of Miss Whittaker that District Judge Heppell can now direct a new date on which his order is to take effect. Regrettably the order cannot be saved by r 29.15 of the FPR 2010.”

 

    4. 10        Conclusion

 

    4. It is therefore clear that, as long as (a) everyone knows there has been no decree nisi, and (b) the decision of the judge is expressed as an “an indication of outcome with the consequential order to be drawn and made at a later date (i.e. pronouncement decree nisi)” then the answer to the question posed in the heading to this article is “don’t panic” – don’t even worry – you will have a perfectly valid and enforceable determination of the court even if the order is not drawn up and does not take effect until later (i.e. pronouncement decree nisi)”.

 

  4. Stephen J. Murray
  6. Counsel
  8. 11/06/2021

 

Known for his robust and thorough approach to cases, Stephen Murray originally pursued a career  with the Derbyshire Constabulary. After two years in the police service he left to go to university; graduated with a law degree from Leicester University in 1985 and was called to the Bar in 1986 by Inner Temple having come in the top 8% in the Bar Finals and won two separate scholarships.

In his early years at the Bar, Stephen had a mixed common law practice. For many years now Stephen has specialised in matrimonial finance (with a particular emphasis on complex financial remedy cases for high net worth clients involving issues such as trusts and company valuations) and related fields, particularly applications under the Inheritance (Provision for Family and Dependants) Act 1975 and cohabitation disputes.

For more information on Stephen Murray please contact Chambers Director James Parks or Senior Clerk Camille Scott by phone 0161 278 8263 or email family@18sjs.com